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1997 DIGILAW 291 (PAT)

Jitendra Nath v. State Of Bihar

1997-04-10

P.K.SARIN

body1997
Judgment P.K.Sarin, J. 1. This criminal revision application is directed against the order dated 11.6.1992 passed by Judicial Magistrate First Class, Patna in complaint case No. 479 (c) 91 whereby the petitioners complaint has been dismissed under Section 203 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). 2. It appears that the petitioner filed a complaint (copy at Annexure 1) against the opposite party No. 3 complaining about commission of offences punishable under Sections 304. 304-A and 504 of the Indian Penal Code. 3. It was alleged that a child was born on 13.8.1991 by the wife of the petitioner at the Nursing Home maintained by Dr. Mrs. Manju Geeta Mishra. However, condition of the child deteriorated in the intervening night of 13/14 August.1991. On the advice of the doctor of the said Nursing Home the newly born child was taken to the Nursing Home of opposite party No. 3 in the same night at 2 a.m. Child was admitted in the Nursing Home of opposite party No. 3 in the same night at 2.30 a.m. where he was kept in incubator. It was alleged that the child expired in the interventing night of 15/16 August, 1991 and it was informed to the petitioner at the Nursing Home of Dr. Manju Geeta Mishra where the petitioner was attending his wife. It was alleged that the death took place in the Nursing Home of opposite party No. 3. It was further alleged that the opposite party no. 3 did not call any eminent doctor although the petitioner had asked to immediately call senior physician namely Dr. Lala Surya Nandan and Dr. Utpal Kant or any other senior expert doctor if the condition of the child was found to be not satisfactory and the petitioner would bear the fees of such doctors. It was alleged that the opposite party No. 3 did not call any senior doctor and proper care was not taken as a result of which child died. It was alleged that some altercation also took place whereupon the opposite party No. 3 asked him to get out and said that he would see him. The death certificate was granted by opposite party No. 3. 4. It was alleged that some altercation also took place whereupon the opposite party No. 3 asked him to get out and said that he would see him. The death certificate was granted by opposite party No. 3. 4. In the inquiry under Section 202 of the Code the petitioner examined his wife Smt.Bibha Nath and his brother Birendra Nath The learned Magistrate after such enquiry passed the impugned order holding that no prima facie case was made out against the accused and accordingly dismissed the complaint petition under Section 203 of the Code. Being aggrieved by the said order the petitioner has come to this Court. 5. It has been contended on behalf of the petitioner that the learned Magistrate exceeded his jurisdiction in evaluating the evidence when the evidence disclosed an offence triable by the Court of Sessions. It is contended that the learned Magistrate could not have evaluated the evidence as that was the job of the Court of Sessions when the Court of Sessions would have to consider the evidence before framing of charge and if no sufficient material is found the accused would have been discharged under Section 227 of the Code. 6. In support of his contention the learned counsel for the petitioner has placed reliance on a decision of this Court in the case of Rudal Mahto v. Narain Mahto, 1987 PLJR 616, wherein it has been held that the Magistrate is to perform the judicial function only to be satisfied that an offence prima facie disclosed is triable exclusively by Court of Session!. It was further observed that where a penal provision exclusively triable by the Court of Sessions is attracted, the Magistrate has no jurisdiction to record a finding that the evidence is contradictory and thereafter dismiss the complaint. It was further held that the Magistrate has no jurisdiction to dismiss complaint under Section 203 of the Code and if the offence disclosed is exclusively triable by Court of Sessions, accused can take full advantage of Section 227 of the Code after commitment and get order of discharge if evidence against accused is contradictory and allegations are not found to be supported by any material. The decisions of the Apex Court in the cases of K.P. Raghavan v. M.H. Abbas, AIR 1967 SC 740 ; State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 ; and the case of Sanjay Gandhi v. Union of India, AIR 1978 SC 514 , have been referred to. 7. In the case of Sanjay Gandhi v. Union of India, (supra), the Apex Court observed that is not open for the committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits. It is further observed that the jurisdiction vested in him under the earlier Code to hold that he can go into the merits even for a prima facie satisfaction is to frustrate the Parliaments purpose in remoulding Section 207-A (Old Code) into its present non-discretionary shape. It was further observed that if made up facts unsupported by any material are reported by the police and a sessions offence is made to appear. It is perfectly open to the Sessions Court under Section 227 of the Code to discharge the accused..This provision takes care of the alleged grievance of the accused. 8. In view of the decision of this Court and the Apex Court in the said cases the scope of enquiry by the Magistrate into a case where sessions triable offence is alleged is very limited. The Magistrate has only to be satisfied that an offence is prima facie disclosed and that the case is triable exclusively by the Court of Sessions. If he finds so he is to commit the case and has no power to discharge the accused after evaluating the evidence meticulously as if he were the trial Court. The learned Magistrate in the present case appears to have entered into detailed discussions of the evidence and evaluation of evidence to hold that no case is made out. He has also discussed the probable defence of the accused not on any materia! on record but on his own imagination. 9. It may also be pointed out that the Supreme Court in the case of State of Bihar v. Ramesh Singh, (supra), while considering the scope of Sections 202 and 203 of the Code has held that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. 9. It may also be pointed out that the Supreme Court in the case of State of Bihar v. Ramesh Singh, (supra), while considering the scope of Sections 202 and 203 of the Code has held that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction. In the case of Kewal Krishna v. Suraj Bhan, AIR 1980 SC 1780 , the Apex Court considered the scope of Sections 203 and 204 of the Code in a case exclusively triable by the Court of Sessions. The Court observed that in such a case all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during preliminary inquiry under Sections 200 and 202 of the Code, there is prima facie evidence in support of the charge levelled against the accused. The Court observed that all that he has to see whether or not there is sufficient ground for proceeding against the accused and at that stage the Magistrate is not to weigh the evidence meticulously as if he were the trial Court. It is further observed that the standard to be adopted by the Magistrate in scrutinising the evidence is not the same as one which is to be kept in view at the stage of framing charge. 10. In the present case, the learned Magistrate does not appear to have kept into mind the principles laid down by the Apex Court in the said cases and the decision of this Court in the case of Rudal Mahto v. Narain Mahto, (supra). The learned Magistrate appears to have evaluated the evidence as trial Court and he has met the argument of the petitioner by giving answers and has given explanation which the defence could have given. The learned Magistrate while scrutinising the evidence for finding prima facie case has not to consider the probable defence of the accused and discuss the pleas which might be open to the accused. The learned Magistrate has erred in evaluating the evidence and rejecting the evidence by assigning reasons on the basis of probable defence of the accused. The learned Magistrate appears to have exceeded his jurisdiction while considering the case for passing an order under Section 203/204 of the Code. This order cannot be sustained and is liable to be set aside. 11. The learned Magistrate appears to have exceeded his jurisdiction while considering the case for passing an order under Section 203/204 of the Code. This order cannot be sustained and is liable to be set aside. 11. In the circumstances the impugned order is set aside. The case is remitted to the learned Magistrate who shall restore it to its number and shall decide the matters afresh keeping in view the decisions referred to above.